Remainders that are to emerge or arise upon Contingency, are quite out of the Rules and Reasons of Perpetuities; nay, out of the Reason, upon which the Policy of the Law is founded in those Cases; especially if they be not of remote or long Consideration, but such as by a natural and easy Interpretation will speedily wear out, and so Things come to the right Channel again: That tho' there can be no Remainders limited after a Fee-simple, yet there may be a Contingent Fee-simple arise out of the first Fee; that the ultimum quod sit, or the utmost Limitation of a Fee upon a Fee is not yet plainly determined; that tho' it be impossible to limit a Remainder of a Fee upon a Fee, yet 'tis not impossible to limit a Contingent Fee upon a Fee; that no Conveyance is ever to be set aside in Chancery, where it can be supported by a reasonable Construction, especially where 'tis a Family Settlement. Then these Paragraphs were applied; and further urged, That there could not in Reason be any Difference between a Contingency to happen during Life or Lives, or within one Year afterwards; that the true Reason of such Opinions, which allowed them if happening within the Time of the Parties lives, or upon their Deceases, was because no Inconvenience could be apprehended thereby; and the same Reason will hold to one Year afterwards; and the true Rule is to fix Limits and Boundaries to such Limitations, when so made, as that they prove Inconvenient, and not otherwise: That this Limitation upon this Contingency happening, was the considerate Intention of the Family, the Circumstances whereof required Consideration, and this Settlement was the Result of it, and made by good Advice: That the Fine could not bar the Benefit of this Proviso; for that the same never was, nor ever could be in Penelope, who levied the Fine.
As to the Pretence, That if the Appellants were relieved, Richard Carew who married Penelope would have no Portion with her: 'Twas answered, That that could not alter the Case; the Agreement and Intention of the Parties being the most considerable Matter, and besides, Richard enjoyed the Estate during his Life without Impeachment of Waste. And as to the Debts, 'twas answered, That those were no Ingredients in the Question; however there would be 4000l. paid towards it, and the Personal Estate was more than enough to pay the Residue. For which, and other Reasons, 'twas prayed that the Dismission might be reversed.
Argument for the Respondents.—On the other Side it was insisted on with the Decree, 1. That the Limitation by the Settlement in July 1674. to the Heirs of Penelope, upon Payment of 4000l. by them to the Heirs of Richard Carew, within twelve Months after the Death of Richard and Penelope without Issue, at the Time of the Decease of the Survivor of them, is a void Limitation, the Fee-simple being before limited to Richard and his Heirs, and so not capable of a [140] further Limitation, unless upon a Contingency to happen in the Life of one or more Persons in Being at the Time of the Settlement; which is the furthest that the Judges have ever yet gone in allowing these Contingent Limitations upon a Fee: and which were the Bounds set to these Limitations by the late Lord Chancellor Nottingham, in the case of the Duke of Norfolk. That tho' there were such Expressions as had been read on the other side, yet the Bounds set by him to these Limitations, were only dependent upon Life or Lives in Being, and never as yet went any further: And if they should be extended, and allowed to be good upon Contingencies to happen within twelve Months after the Death of one or more Persons, they may be as well allowed upon Contingencies to happen within a thousand Years; by which all the Mischiefs, that are the necessary Consequents of Perpetuities, which have been so industriously avoided in all Ages, will be let in; and the Owner of a Fee-simple thus clogged would be no more capable of providing for the Necessities and Accidents of his Family, than a bare Tenant for Life.
2. Decree of Dismission reversed.—If this Limitation were good, 'twas urged, That the Estate limited to the Heirs of Penelope was virtually in her, and her Heirs must claim by Descent from her, and not as Purchasors; and by Consequence this Estate is effectually barred by the Fine of Penelope: The Design of limiting this Power to the Heirs not being to exclude the Ancestor; but because the Power could not in its Nature be executed until after the Decease of the Ancestor, it being to take effect upon a Contingency that could not happen till after that Time; and this Bill and Appeal was not only to have the said Richard Carew, who married Penelope, to have not one Farthing Portion with his Wife, but to make
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